CA8: Def’s statement was attenuated from the false statement that led to the SW being issued

An untrue statement in an affidavit for search warrant was attenuated from defendant’s later confession. All four factors of the attenuation doctrine weighed in favor of not suppressing statements defendant made during his interview with the agent. The causal connection between defendant’s incriminating statements and the search that violated the Fourth Amendment was broken. United States v. Yorgensen, 2017 U.S. App. LEXIS 558 (8th Cir. Jan. 12, 2017):

The exclusionary rule applies to statements that result from a Fourth Amendment violation, but a statement is not “fruit of the poisonous tree simply because it would not have come to light but for the illegal actions of police.” Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). The question is whether police obtained the statement “by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Id. at 488 (quotation omitted). “[E]xclusion may not be premised on the mere fact that a constitutional violation was a ‘but-for’ cause of obtaining evidence.” Hudson v. Michigan, 547 U.S. 586, 592, 126 S. Ct. 2159, 165 L. Ed. 2d 56 (2006).

A.

The first question is whether there was a sufficient “factual nexus between the constitutional violation” — Meyer’s recklessly untrue warrant affidavit — “and the challenged evidence” — Yorgensen’s statements to Agent Jones two days later. United States v. Riesselman, 646 F.3d 1072, 1079 (8th Cir. 2011), cert. denied, 565 U.S. 1136, 132 S. Ct. 1065, 181 L. Ed. 2d 780 (2012). The affidavit resulted in a warrant search that discovered evidence of drug trafficking, resulting in Yorgensen’s arrest. There would be no factual nexus if he was in custody when interviewed by Agent Jones because the officers had probable cause to arrest him before entering his home, regardless whether Meyer’s affidavit contained an untrue statement in presenting facts which, if accurately described, would have provided the magistrate with probable cause to issue a warrant.

This chain of events is different from, but obviously analogous to, the decision in New York v. Harris, 495 U.S. 14, 21, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990), where the Court held that, “where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State’s use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton [v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980)].” In Harris, the Court declined to apply the attenuation analysis in Brown, where there was no probable cause to search or arrest. Instead, the Court ruled that “[n]othing in the reasoning of [Payton] suggests that an arrest in a home without a warrant but with probable cause somehow renders unlawful continued custody of the suspect once he is removed from the house.” Harris, 495 U.S. at 18.

The district court committed plain error in not considering whether this principle applies and eliminates any factual nexus between Meyer’s faulty warrant affidavit and Yorgensen’s statements to Agent Jones. Yorgensen’s brief on appeal cited Payton but failed to cite any case where the exclusionary rule has been applied to statements made following an arrest based upon probable cause obtained in executing a facially valid search warrant subsequently invalidated after a Franks hearing. See United States v. Ladum, 141 F.3d 1328, 1336-37 (9th Cir.), cert. denied, 525 U.S. 1021, 119 S. Ct. 549, 142 L. Ed. 2d 457 (1998); Lingo v. City of Salem, 832 F.3d 953, 960 (9th Cir. 2016) (“nothing within the fruit-of-the-poisonous-tree doctrine suggests that an officer must ignore facts that would give him probable cause to arrest a person merely because those facts were procured through an unlawful search”).

B.

The second question is whether the attenuation doctrine applies. In Brown v. Illinois, the Supreme Court discussed and applied an exception to the exclusionary rule called “the attenuation doctrine: Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance.” Utah v. Strieff, 136 S. Ct. 2056, 2061, 195 L. Ed. 2d 400 (2016). In Brown, the Court held that, to determine whether the causal connection between incriminating statements and an arrest or search that violated the Fourth Amendment has been broken, Miranda warnings — which protect Fifth Amendment rights — are relevant but other factors must be considered — the “temporal proximity” of the unconstitutional conduct and the statements, the “presence of intervening circumstances,” and “particularly, the purpose and flagrancy of the official misconduct.” 422 U.S. at 603-04; see Riesselman, 646 F.3d at 1080. Here, we conclude that all four factors weigh in favor of not suppressing statements Yorgensen made during Special Agent Jones’s March 24 interview.

. . .

4. Purpose and Flagrancy of Misconduct. “The Supreme Court places a particular emphasis on any ‘purpose and flagrancy of the official misconduct’ in effecting the initial illegal entry.” Brandwein, 796 F.3d at 985, quoting Brown, 422 U.S. at 603-04. “Application of the exclusionary rule … does not serve [its] deterrent function when the police action, although erroneous, was not undertaken in an effort to benefit the police at the expense of the suspect’s protected rights.” United States v. Simpson, 439 F.3d 490, 496 (8th Cir. 2006) (quotation omitted). “An unreasonable mistake alone is not sufficient to establish flagrant misconduct.” United States v. Herrera-Gonzalez, 474 F.3d 1105, 1113 (8th Cir. 2007); see Strieff, 136 S. Ct. at 2063.

In this case, the only misconduct was Meyer drafting a probable cause affidavit that included one untrue statement — that he had smelled marijuana odor coming directly from unit four, rather than smelling a dissipating odor of marijuana on or around Yorgensen that he reasonably inferred came from unit four. The district court found that the error was unintentional. There was no evidence Meyer knew his affidavit was constitutionally inadequate; indeed, his testimony was firmly to the contrary. The magistrate judge noted that Meyer “had little experience in preparing search warrant applications,” but that does not support a finding of purposeful or flagrant misconduct. We reject the district court’s conclusion that, because Meyer was guilty of a recklessly untrue statement, his misconduct was “purposeful or flagrant.” See Strieff, 136 S. Ct. at 2064 (“For the violation to be flagrant, more severe police misconduct is required than the mere absence of proper cause for the seizure.”).

In Brown, police acknowledged that they broke into Brown’s apartment and arrested him without probable cause for the purpose of investigating the murder to which he later confessed. The “impropriety of the arrest was obvious” because officers arrested Brown for questioning in a manner “calculated to cause surprise, fright, and confusion.” 422 U.S. at 605. Similarly, in Taylor v. Alabama, 457 U.S. 687, 691, 102 S. Ct. 2664, 73 L. Ed. 2d 314 (1982), a post-arrest confession was suppressed because “[p]etitioner was arrested without probable cause in the hope that something would turn up, and he confessed shortly thereafter without any meaningful intervening event.” Though obtaining a search warrant is investigative conduct, Deputy Meyer’s unintentional error in describing for an issuing magistrate what Meyer believed to be probable cause is a far cry from the purposeful and flagrant misconduct that weighed in favor of suppression in Brown and its progeny.

"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud

"A system of law that not only makes certain conduct criminal, but also lays
down rules for the conduct of the authorities, often becomes complex in its
application to individual cases, and will from time to time produce imperfect
results, especially if one's attention is confined to the particular case at
bar. Some criminals do go free because of the necessity of keeping
government and its servants in their place. That is one of the costs of having
and enforcing a Bill of Rights. This country is built on the assumption that
the cost is worth paying, and that in the long run we are all both freer and
safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"The criminal goes free, if he must, but it is the law that sets him free. Nothing
can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).

"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)

“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards

"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]

“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew

"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)